S06044 Summary:

BILL NOS06044
 
SAME ASSAME AS A01895-A
 
SPONSORAVELLA
 
COSPNSRALCANTARA, HAMILTON, PERALTA, SAVINO
 
MLTSPNSR
 
Add Art 695 695.05 - 695.25, CP L
 
Relates to creating the New York electronic communications privacy act; relates to the search and seizure of electronic devices and electronic communications.
Go to top    

S06044 Actions:

BILL NOS06044
 
05/10/2017REFERRED TO CODES
01/03/2018REFERRED TO CODES
Go to top

S06044 Committee Votes:

Go to top

S06044 Floor Votes:

There are no votes for this bill in this legislative session.
Go to top

S06044 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6044
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                      May 10, 2017
                                       ___________
 
        Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the criminal procedure law, in relation to  establishing
          the New York electronic communications privacy act ("NYECPA")
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The criminal procedure law is amended by adding a new arti-
     2  cle 695 to read as follows:
     3                                 ARTICLE 695
     4           SEARCH AND SEIZURE OF ELECTRONIC DEVICES AND ELECTRONIC
     5                               COMMUNICATIONS
     6  Section 695.05 Search and seizure of electronic devices  and  electronic
     7                   communications; definitions.
     8          695.10 Search  and  seizure of electronic devices and electronic
     9                   communications; in general.
    10          695.15 Search and seizure of electronic devices  and  electronic
    11                   communications; in an emergency.
    12          695.20 Search  and  seizure of electronic devices and electronic
    13                   communications; when evidence can be suppressed.
    14          695.25 Search and seizure of electronic devices  and  electronic
    15                   communications; annual report.
    16  § 695.05 Search  and seizure of electronic devices and electronic commu-
    17             nications; definitions.
    18    As used in this article, the following definitions shall apply:
    19    1. "Adverse result" means any of the following:
    20    (a) danger to the life or physical safety of an individual;
    21    (b) flight from prosecution;
    22    (c) destruction of or tampering with evidence;
    23    (d) intimidation of potential witnesses; or
    24    (e) serious jeopardy to an investigation.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03787-04-7

        S. 6044                             2
 
     1    2. "Authorized possessor" means the person in possession of  an  elec-
     2  tronic  device  when  that person is the owner of the device or has been
     3  authorized to possess the device by the owner of the device.
     4    3.   "Electronic  communication"  means  the  transmission  of  signs,
     5  signals, writings, images, sounds, data, or intelligence of  any  nature
     6  in whole or in part by a wire, radio, electromagnetic, photoelectric, or
     7  photo-optical system.
     8    4. "Electronic communication information" means information related to
     9  an  electronic  communication  or the use of an electronic communication
    10  service including, but not limited to the contents, sender,  recipients,
    11  or  format  of  an  electronic communication; the precise or approximate
    12  location of the sender or recipients of an electronic  communication  at
    13  any  time during such communication; the time or date such communication
    14  was created, sent, or received and information pertaining to an individ-
    15  ual or device involved in the communication including but not limited to
    16  an internet protocol address. Electronic communication information  does
    17  not  include  subscriber information as defined in this article and does
    18  not include information in the public domain.
    19    5. "Electronic communication service" means a  service  that  provides
    20  subscribers  to  or users of such service the ability to send or receive
    21  an electronic communication as defined  in  this  article,  including  a
    22  service  that  acts as an intermediary in the transmission of electronic
    23  communications, or that stores electronic communication information.
    24    6. "Electronic device" means a device that stores, generates, or tran-
    25  smits information in electronic form.
    26    7. "Electronic device information"  means  information  stored  in  or
    27  generated  through  the  operation  of  an  electronic device, including
    28  information related to the location of such device at any time.
    29    8. "Electronic information" means electronic communication information
    30  or electronic device information.
    31    9. "Law enforcement agency" means any agency which is empowered by law
    32  to conduct an investigation or to make an arrest for  an  offense  under
    33  the  penal law, and an agency which is authorized by law to prosecute or
    34  participate in the prosecution of an offense under the penal law.
    35    10.  "Law  enforcement  officer"  means  any  public  servant  who  is
    36  empowered by law to conduct an investigation of or to make an arrest for
    37  an  offense  under  the penal law, and any attorney authorized by law to
    38  prosecute or participate in the prosecution  of  an  offense  under  the
    39  penal law.
    40    11.  "Location information" means information regarding the general or
    41  specific location of an electronic device.
    42    12. "Service provider" means a person or entity that provides an elec-
    43  tronic communication service.
    44    13. "Specific consent"  means  consent  provided  directly  to  a  law
    45  enforcement  agency  or  law  enforcement  officer  seeking  information
    46  regarding an electronic communication,  including  but  not  limited  to
    47  circumstances in which a law enforcement agency or law enforcement offi-
    48  cer  is  the addressee or intended recipient or a member of the intended
    49  audience for such communication.
    50    14. "Subscriber information" means the name, street address, telephone
    51  number, email address, or similar  contact  information  provided  by  a
    52  subscriber  to  the service provider in order to establish or maintain a
    53  communication  channel  or  an  account  for  electronic   communication
    54  services,  as  well  as  a  subscriber identifier or account number, the
    55  period of time in which the subscriber receives service; and  the  types
    56  of services used by a user of or subscriber to a service provider.

        S. 6044                             3
 
     1  § 695.10 Search  and seizure of electronic devices and electronic commu-
     2             nications; in general.
     3    1. Except as provided in this section, a law enforcement agency or law
     4  enforcement officer shall not:
     5    (a) compel, induce or offer incentives for the production of or access
     6  to electronic communication information from a service provider;
     7    (b)  compel  the production of or access to electronic device informa-
     8  tion from any person or entity other than the  authorized  possessor  of
     9  the device; or
    10    (c)  access  electronic device information by means of physical inter-
    11  action or electronic communication with the electronic device.
    12    2. A law enforcement agency or law enforcement officer may compel  the
    13  production  of  or access to electronic communication information from a
    14  service provider, or compel the production of or  access  to  electronic
    15  device  information  from any person or entity other than the authorized
    16  possessor of the device only under the following circumstances:
    17    (a) pursuant to a  warrant  issued  in  accordance  with  article  six
    18  hundred  ninety  of  this  title and subject to subdivision four of this
    19  section, unless the law enforcement agency or law enforcement officer is
    20  required under section 250.00 of the penal law and article seven hundred
    21  of this title to obtain a  warrant  issued  pursuant  to  article  seven
    22  hundred of this title; or
    23    (b)  pursuant  to  a  warrant  issued in accordance with article seven
    24  hundred of this title.
    25    3. A law enforcement agency or law  enforcement  officer  may  access,
    26  without consent, as provided in this section, electronic device informa-
    27  tion  by  means of physical interaction or electronic communication with
    28  the device only as follows:
    29    (a) pursuant to a warrant in accordance with article six hundred nine-
    30  ty of this title and subject to subdivision four of this section, unless
    31  the law enforcement agency or law enforcement officer is required  under
    32  section  250.00 of the penal law and article seven hundred of this title
    33  to obtain a warrant issued pursuant to article  seven  hundred  of  this
    34  title;
    35    (b)  pursuant  to  a  warrant  issued in accordance with article seven
    36  hundred of this title;
    37    (c) with the specific consent  of  the  authorized  possessor  of  the
    38  device;
    39    (d)  with  the  specific consent of the owner of the device, only when
    40  the device has been reported as lost or stolen; or
    41    (e) if the law enforcement agency or law enforcement officer, in  good
    42  faith,  believes  the  device to be lost, stolen, or abandoned, provided
    43  that the law enforcement agency or law enforcement officer shall  access
    44  electronic  device  information  only  for  the purpose of attempting to
    45  identify, verify, or contact the owner or authorized  possessor  of  the
    46  device.
    47    4. Any warrant for electronic information shall:
    48    (a) describe with particularity the information to be seized by speci-
    49  fying  the  time  periods  for  which such information is sought and, as
    50  appropriate and reasonable, the  target  individuals  or  accounts,  the
    51  applications  or  services covered, and the types of information sought;
    52  and
    53    (b) comply with all applicable provisions of state  and  federal  law,
    54  including  such  provisions  that  prohibit  or  limit the use of search
    55  warrants, or that impose additional requirements, beyond  the  scope  of
    56  this article, regarding search warrants.

        S. 6044                             4
 
     1    (c)  If  an  affidavit, declaration, deposition, allegation of fact or
     2  other material is submitted in support of the application for a warrant,
     3  the judge must file it with the court within twenty-four  hours  of  the
     4  issuance of a warrant.
     5    5.  A  service  provider  may voluntarily disclose electronic communi-
     6  cation information or subscriber information when that disclosure is not
     7  otherwise prohibited by this article or by other provisions of state law
     8  or by federal law.
     9    6. A law enforcement agency or law enforcement officer  that  receives
    10  electronic  communication  information  provided  voluntarily shall seal
    11  that information within ninety days and access to the information  shall
    12  be prohibited except in one or more of the following circumstances:
    13    (a)  a law enforcement officer or agency obtains specific consent from
    14  the sender or recipient of the  electronic  communications  about  which
    15  information has been disclosed; or
    16    (b)  a law enforcement officer or agency obtains a court order author-
    17  izing access to the electronic communication information. A court  shall
    18  issue  an  access  order  upon  the  same finding required for issuing a
    19  warrant pursuant to article six hundred ninety of the criminal procedure
    20  law and subject to subdivision four of this section.
    21    (c) information retained by a law enforcement officer or agent that is
    22  subject to this provision shall not be shared with:
    23    (i) persons or entities that do not agree to  limit  the  use  of  the
    24  provided  information to those purposes identified in the court authori-
    25  zation; and
    26    (ii) persons or entities that:
    27    (A) are not legally obligated to destroy the provided information upon
    28  the expiration or rescindment of the court's retention order; or
    29    (B) do not voluntarily agree to destroy the provided information  upon
    30  the expiration or rescindment of the court's retention order.
    31    7.  A  law  enforcement agency or law enforcement officer that obtains
    32  electronic information pursuant to  an  emergency  involving  danger  of
    33  death  or  serious physical injury to a person, which requires access to
    34  the electronic information without delay, shall within three days  after
    35  obtaining  the electronic information file with the appropriate court an
    36  application for a warrant or order that authorizes access to such  elec-
    37  tronic  information,  or  a  motion  seeking  approval  of the emergency
    38  disclosures that sets forth the facts giving rise to the emergency,  and
    39  if  applicable,  a  request  supported by a sworn affidavit for an order
    40  delaying notification to the court as required under  paragraph  (a)  of
    41  subdivision  two  of  section  695.15  of  this article. The court shall
    42  promptly rule on such application or motion, and shall order the immedi-
    43  ate destruction of all information obtained, and immediate  notification
    44  to  the  targets of a warrant or emergency request, pursuant to subdivi-
    45  sion one of section 695.15 of this  article,  if  such  notice  has  not
    46  already  been  given, upon a finding that the facts did not give rise to
    47  an emergency, or upon a ruling that rejects the warrant or order  appli-
    48  cation on any other ground.
    49    8.  This  section  does  not  limit the authority of a law enforcement
    50  agency or law enforcement officer to use an administrative, grand  jury,
    51  trial, or civil discovery subpoena to do any of the following:
    52    (a)  require  an  originator,  addressee,  or intended recipient of an
    53  electronic communication to disclose any electronic communication infor-
    54  mation associated with that communication;
    55    (b) require an entity that provides electronic communications services
    56  to its officers, directors, employees, or  agents  for  the  purpose  of

        S. 6044                             5
 
     1  carrying out their duties, to disclose electronic communication informa-
     2  tion  associated with an electronic communication to or from an officer,
     3  director, employee, or agent of the entity; or
     4    (c) require a service provider to provide subscriber information.
     5    9.  This  section does not prohibit the intended recipient of an elec-
     6  tronic communication from  voluntarily  disclosing  electronic  communi-
     7  cation  information  concerning  that communication to a law enforcement
     8  agency or law enforcement officer.
     9    10. Nothing in this section shall be construed to expand any authority
    10  under state law to compel the production  of  or  access  to  electronic
    11  information.
    12  § 695.15 Search  and seizure of electronic devices and electronic commu-
    13             nications; in an emergency.
    14    1. Except as otherwise provided in this  section,  a  law  enforcement
    15  agency  or  law  enforcement officer that executes a warrant, or obtains
    16  electronic information in an emergency pursuant  to  section  695.10  of
    17  this  article, shall serve upon or deliver to the target of a warrant or
    18  emergency request by registered or first-class mail, electronic mail, or
    19  by other means reasonably calculated to  be  effective,  a  notice  that
    20  informs  the  recipient  that  information  about the recipient has been
    21  compelled or requested. Such notice shall state with reasonable  specif-
    22  icity  the  nature of the government investigation pursuant to which the
    23  information is sought. The notice shall include a copy of the warrant or
    24  a written statement setting forth facts giving rise  to  the  emergency.
    25  The  notice  shall be provided contemporaneously with the execution of a
    26  warrant, or, in the case  of  an  emergency,  within  three  days  after
    27  obtaining  the  electronic  information.    The target of the warrant is
    28  entitled to request a copy of the electronic information obtained in the
    29  same  form  it  was  received  upon  request.   Notice   shall   include
    30  instructions  for requesting copies and a law enforcement agency and law
    31  enforcement officer must provide copies of information obtained  in  the
    32  same  form within three days of receiving the request from the target of
    33  the warrant.
    34    2. (a) When a warrant is sought or electronic information is  obtained
    35  in  an  emergency under section 695.10 of this article, the law enforce-
    36  ment agency or law enforcement officer may submit a request to  a  court
    37  supported  by  a  sworn affidavit for an order delaying notification and
    38  prohibiting any party providing information  from  notifying  any  other
    39  party  that information has been sought. The court shall issue the order
    40  if the court determines that there is reason to believe  that  notifica-
    41  tion  may  have  an adverse result, but only for the period of time that
    42  the court finds there is reason to believe  that  the  notification  may
    43  have that adverse result, and not to exceed ninety days.
    44    (b)  The  court may grant extensions of the delay of up to ninety days
    45  each on the same grounds as provided in paragraph (a) of  this  subdivi-
    46  sion.
    47    (c)  Upon expiration of the period in which notification is delayed, a
    48  law enforcement agency or law enforcement officer shall serve  upon  the
    49  identified  targets  of  a warrant or deliver to those targets by regis-
    50  tered or first-class mail, electronic mail, or  other  means  reasonably
    51  calculated  to  be effective as specified by the court issuing the order
    52  authorizing delayed notification, a document that includes the  informa-
    53  tion  described in subdivision one of this section, along with a copy of
    54  all electronic information obtained in the same form  it  was  received,
    55  and  a statement of the grounds for the court's determination to grant a
    56  delay in notifying the individual.

        S. 6044                             6

     1    3. If there is no identified target of a warrant or emergency  request
     2  at  the time of its issuance, the law enforcement agency or law enforce-
     3  ment officer shall submit to the attorney general of this  state  within
     4  three  days of the execution of the warrant or issuance of the request a
     5  report  regarding  the  information  required in subdivision one of this
     6  section. If an order delaying notice is obtained pursuant to subdivision
     7  two of this section, the law enforcement agency or law enforcement offi-
     8  cer shall submit to the attorney general  upon  the  expiration  of  the
     9  period  of  delay of the notification a report regarding the information
    10  required in paragraph (c) of subdivision two of this section. The attor-
    11  ney general's office shall publish such reports on its internet  website
    12  within  ninety  days of receipt. The attorney general shall redact names
    13  and other personal identifying information from the reports.
    14    4. Except as otherwise provided in this section, nothing in this arti-
    15  cle shall prohibit or limit a service provider or any other  party  from
    16  disclosing information about any request or demand for electronic infor-
    17  mation.
    18  § 695.20 Search  and seizure of electronic devices and electronic commu-
    19             nications; when evidence can be suppressed.
    20    1. Persons who are party to or otherwise subject to a trial,  hearing,
    21  or  other  legal or administrative proceeding may move to suppress elec-
    22  tronic information obtained or retained in violation  of  this  article,
    23  the  United  States Constitution, State Constitution, the New York State
    24  Constitution or the provisions of the criminal procedure law. The motion
    25  shall be made and shall be subject to review by a  court  in  accordance
    26  with  the  procedures  set  forth  in  article seven hundred ten of this
    27  title.
    28    2. The attorney general of this state may commence a civil  action  to
    29  compel  a  law  enforcement  agency or law enforcement officer to comply
    30  with the provisions of this article.  This does not preclude  action  by
    31  an individual, service provider, or other recipient of a warrant, order,
    32  or other legal process that is inconsistent with this article.
    33    3.  An  individual,  service provider or other recipient of a warrant,
    34  order, or other legal process may petition the issuing court to quash or
    35  modify the warrant, order, or process, or to order  the  destruction  of
    36  information  that  is  sought pursuant to such a warrant, order or other
    37  legal process, on the basis that the warrant, order or process  violates
    38  the  United  States Constitution, the New York State Constitution, or is
    39  otherwise contrary to federal or state law. The  warrant  recipient  may
    40  also  move  the  quash  on  the  basis  that  the information or records
    41  requested are unusually voluminous in nature  or  compliance  with  such
    42  order  otherwise  would  cause  an  undue  burden  on such provider. The
    43  court's decision to grant or deny that petition, in whole  or  in  part,
    44  filed under this paragraph is immediately appealable pursuant to section
    45  fifty-seven hundred one of the civil practice law and rules.
    46    4. A state, territory or commonwealth of the United States and foreign
    47  and  domestic corporations as well as officers, employees, and agents of
    48  these entities shall not be subject to a cause of action  for  providing
    49  records,  information,  facilities,  or  other  forms  of  assistance in
    50  accordance with the terms of a warrant, court order, statutory  authori-
    51  zation,  emergency  certification,  or  wiretap order issued pursuant to
    52  this article.  This does not preclude a cause of  action  for  providing
    53  records,  information,  facilities,  or  other  forms of assistance in a
    54  manner that is inconsistent with this article.
    55  § 695.25 Search and seizure of electronic devices and electronic  commu-
    56             nications; annual report.

        S. 6044                             7
 
     1    1.  A  law  enforcement agency or law enforcement officer that obtains
     2  electronic communication information pursuant to this article shall make
     3  an annual report to the attorney general of this  state  regarding  such
     4  information.  The  report shall be made on or before February first, two
     5  thousand eighteen, and on February first of each year thereafter. To the
     6  extent  such  information can be reasonably determined, the report shall
     7  include the following:
     8    (a) the total number of times electronic  information  was  sought  or
     9  obtained pursuant to this article;
    10    (b)  the  number of times such information was sought or obtained, and
    11  the number of records obtained for each of the following categories  the
    12  types of electronic information:
    13    (i) electronic communication content;
    14    (ii) location information;
    15    (iii)  electronic  device information (not including location informa-
    16  tion); and
    17    (iv) other electronic communication information.
    18    (c) for each type of information identified in paragraph (b)  of  this
    19  subdivision:
    20    (i)  the number of times the information was sought or obtained pursu-
    21  ant to:
    22    (1) wiretap orders obtained pursuant to this article;
    23    (2) search warrants obtained pursuant to this article; and
    24    (3) emergency requests subject to subdivision eight of section  695.10
    25  of this article.
    26    (ii)  the  total number of individuals whose information was sought or
    27  obtained;
    28    (iii) the total number of instances in which information was sought or
    29  obtained that did not specify a target individual  from  whom  or  about
    30  whom the information was requested;
    31    (iv)  for  demands  or  requests  issued  upon a service provider, the
    32  number of such demands or requests  complied  with  in  full,  partially
    33  complied with, and not complied with;
    34    (v)  the  number of times notice to targeted individuals of a warrant,
    35  court order, statutory authorization, emergency certification, or  wire-
    36  tap  order  issued  pursuant to this article was delayed and the average
    37  length of the delay;
    38    (vi) the number of times records obtained pursuant to a warrant, court
    39  order, statutory  authorization,  emergency  certification,  or  wiretap
    40  order  issued pursuant to this article were shared with other government
    41  entities or any department or agency of the federal government, and  the
    42  agencies with which such records were shared;
    43    (vii)  the  average  period of time for which location information was
    44  obtained or received; and
    45    (viii) the number of instances in which electronic information  sought
    46  or obtained pursuant to this article was relevant to a criminal proceed-
    47  ing that led to a conviction.
    48    2.  On  or  before  April first, two thousand nineteen, and each April
    49  first thereafter, the attorney general's office  shall  publish  on  its
    50  internet  website  a  summary  aggregating  data related to each type of
    51  electronic communication identified in paragraphs (a), (b)  and  (c)  of
    52  subdivision one of this section by county.
    53    3.  Nothing  in  this  article  shall  prohibit  or restrict a service
    54  provider from producing an annual  report  summarizing  the  demands  or
    55  requests it receives under this article.
    56    § 2. This act shall take effect immediately.
Go to top